Reverse discrimination ruling leaves confusion

The Supreme Court ruling in favor of white New Haven firefighters who said they were victims of reverse discrimination will probably leave employers confused, civil rights advocates and labor attorneys say.

The court ruled 5-4 Monday that the white firefighters were denied promotions unfairly because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as a federal appeals court judge.

The majority of justices said the city was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results. The city said it had acted to avoid a lawsuit from minorities.

While the court upheld that employers still have an obligation under civil rights laws to avoid discrimination in hiring, promoting and compensating workers, the ruling creates confusing standards on how to meet that obligation, said Wade Henderson, president and chief executive of the Leadership Conference on Civil Rights.

“Employers will now face a convoluted minefield when attempting to protect workers from discrimination,” Henderson said. “Employers are looking for bright lines … they’re looking for clear directives to help them better understand how they can engage in nondiscriminatory decisions.”

The ruling is confusing, Henderson said, because the high court seemed to say that while New Haven officials tried to avoid discrimination, throwing out the test was discriminatory. “It puts employers in a real quandary,” he said.

The Obama administration should direct the government’s civil rights agencies to offer guidance on the ruling, said Shirley Wilcher, executive director of the American Association for Affirmative Action.

“In the meantime, we’re scratching our heads,” she said. “We’re concerned about the impact on employers who want to comply with the law and do not want to discriminate … and it’s not clear how to do that.”

Bernard Jacques, a Hartford-based labor and employment attorney, also believes the ruling will stump many employers. The court ruled that test results alone are not enough to prove discrimination, that a “strong basis in evidence” is needed, but justices didn’t define that phrase, Jacques said.

Justice Anthony Kennedy said in the ruling, “Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.” He was joined in the majority by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

In dissent, Justice Ruth Bader Ginsburg said the white firefighters “understandably attract this court’s sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them.”

Justices David Souter, Stephen Breyer and John Paul Stevens signed onto Ginsburg’s dissent, which she read aloud in court Monday. Speaking dismissively of the majority opinion, she predicted the court’s ruling “will not have staying power.”

The ruling is “a sign that individual achievement should not take a back seat to race or ethnicity,” said Karen Torre, the firefighters’ attorney. “I think the import of the decision is that cities cannot bow to politics and pressure and lobbying by special interest groups or act to achieve racial quotas.”

At a news conference on the steps of city hall in New Haven, firefighter Frank Ricci, the lead plaintiff in the lawsuit, said the ruling showed that “if you work hard, you can succeed in America.”

New Haven, trying to fill senior fire department vacancies, gave a test to 77 candidates for lieutenant and 41 candidates for captain. Fifty-six firefighters passed the exams, including 41 whites, nine blacks and six Hispanics. But of those, only 17 whites and two Hispanics could expect promotion.

The city eventually decided not to use the exam to determine promotions. It said it acted because it might have been vulnerable to claims that the exam had a “disparate impact” on minorities in violation of the Civil Rights Act of 1964.

The white firefighters said the decision violated the same law’s prohibition on intentional discrimination. Twenty white plaintiffs sued.

The city declined to validate the test after it was given, a step that could have identified flaws or determined that there were no serious problems with it. In addition, city officials could not say what was wrong with the test, other than the racially skewed results.

“The city could be liable for disparate-impact discrimination only if the examinations were not job related” or the city failed to use a less discriminatory alternative, Kennedy said. “We conclude that there is no strong basis in evidence to establish that the test was deficient in either of these respects.”

But Ginsburg said the court should have assessed “the starkly disparate results” of the exams against the backdrop of historical and ongoing inequality in the New Haven fire department. As of 2003, she said, only one of the city’s 21 fire captains was African-American.

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Associated Press writers Mark Sherman in Washington, D.C., and Katie Nelson in New Haven contributed to this report.